Citation Nr: 0305707
Decision Date: 03/26/03 Archive Date: 04/03/03
DOCKET NO. 02-10 300 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee,
Wisconsin
THE ISSUE
Entitlement to service connection for residuals of prostate
cancer on a direct basis or as residual to exposure to
ionizing radiation.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Frank L. Christian, Counsel
INTRODUCTION
The claimant served on active duty in the United States Army
from September 1944 to November 1946.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of January 2002 from
the Department of Veterans Affairs (VA) Regional Office (RO)
in Milwaukee, Wisconsin, which denied service connection for
prostate cancer on a direct basis or as residual to exposure
to ionizing radiation.
Pursuant to a Motion by the claimant's representative, this
case has been advanced on the docket under the provisions of
38 U.S.C.A. § 7101 (West 1991 & Supp. 2002) and 38 C.F.R.
§ 20.900(c) (2002).
There has been a significant change in the law with the
enactment of the Veterans Claims Assistance Act of 2000, Pub.
L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000)
[codified as amended at 38 U.S.C.A. §§ 5102, 5103, 5103A, and
5107 (West Supp. 2002)]. This law eliminates the concept of
a well-grounded claim, redefines the obligations of VA with
respect to the duty to assist, and supersedes the decision of
the United States Court of Appeals for Veterans Claims (the
Court) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn
sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6,
2000) (per curiam order) (holding that VA cannot assist in
the development of a claim that is not well grounded). The
VCAA is applicable to all claims filed on or after the date
of enactment, November 9, 2000, or filed before the date of
enactment and not yet final as of that date. See Karnas v.
Derwinski, 1 Vet. App. 308, 312-13 (1991).
In Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), the
Court held that where a statute or regulation changes during
the appellate process, the version more favorable to the
claimant shall apply. VA's General Counsel has determined,
in a precedential opinion that the Board is bound to follow,
that the VCAA is more favorable to claimants than the law in
effect prior to its enactment. See VAOPGCPREC 11-00;
Janssen v. Principi, 15 Vet. App. 123 (2001) (per curiam).
Final regulations to effectuate the VCAA were published on
August 29, 2001 with the same effective date of the VCAA,
November 9, 2000. Except for the amendment to 38 CFR
§ 3.156(a), the second sentence of 38 CFR § 3.159(c), and 38
CFR § 3.159(c)(4)(iii), effective August 29, 2001, governing
reopening of previously and finally denied claims, the
provisions of this final rule apply to any claim for benefits
received by VA on or after November 9, 2000, as well as to
any claim filed before that date but not decided by VA as of
that date. As the instant appeal does not address a reopened
claim, the revised regulations pertaining to reopened claims
are inapplicable to this appeal.
The record shows that the claimant and his representative
were notified of the provisions of the VCAA by Statement of
the Case (SOC) provided them on June 12, 2002, which informed
them of VA's duty to notify them of the information and
evidence necessary to substantiate the claim and to assist
them in obtaining all such evidence. That letter also
informed the claimant and his representative which part of
that evidence would be obtained by the RO and which part of
that evidence would be obtained by the claimant, pursuant to
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002)
(requiring VA to notify the claimant of what evidence he or
she was required to provide and what evidence the VA would
attempt to obtain).
In addition, that SOC informed the claimant and his
representative of the issue on appeal, the evidence
considered, the adjudicative actions taken, the pertinent law
and regulations pertaining to direct and secondary service
connection based upon claims of exposure to ionizing
radiation, the decision reached, and the reasons and bases
for that decision. That SOC also notified the claimant and
his representative of VA's duty to assist them by obtaining
all evidence in the custody of military authorities or
maintained by any other federal, State or local government
agency, as well as any medical, employment, or other non-
government records which are pertinent or specific to that
claim; and which the claimant identified and provided record
release authorizations permitting VA to obtain those records.
Further, that SOC informed the claimant and his
representative that should efforts to obtain records
identified by the claimant prove unsuccessful for any reason
which the claimant could remedy, the VA would notify the
claimant and advise him that the ultimate responsibility for
furnishing such evidence lay with the claimant.
The Board finds that all relevant evidence necessary for an
equitable disposition of the instant appeal has been obtained
by the RO, and that VA's duty of notification to the claimant
and his representative of required information and evidence
and of its duty to assist them in obtaining all evidence
necessary to substantiate the issue on appeal have been fully
met. The RO has obtained the claimant's complete service
medical records, as well as all private or VA medical
evidence identified by the claimant. The claimant has
withdrawn his request for a hearing before a traveling
Veterans Law Judge of the Board of Veterans' Appeals.
Neither the appellant nor his representative have argued a
notice or duty to assist violation under the VCAA, and the
Board finds that there is no question that the appellant and
his representative were fully notified and aware of the type
of evidence required to substantiate the claim. In view of
the extensive factual development in the case, as
demonstrated by the record on appeal, the Board finds that
there is no reasonable possibility that further assistance
would aid in substantiating this appeal. For those reasons,
further development is not necessary for compliance with the
provisions of 38 U.S.C.A. §§ 5103 and 5103A (West Supp.
2002).
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the instant appeal has been obtained by the
RO, and VA's duty of notification to the claimant of required
information and evidence and of its duty to assist him in
obtaining all evidence necessary to substantiate his claim
have been fully met.
2. Prostate cancer was not manifest during active service,
within any applicable presumptive period, or at any time
prior to February 1994, more than 48 years after final
service separation.
3. Competent medical evidence and opinion holds that the
claimant's residuals of prostate cancer were not incurred as
a result of ionizing radiation exposure during active
service.
CONCLUSION OF LAW
The grant of service connection for residuals of prostate
cancer is not warranted. 38 U.S.C.A. § 1100, 1112, 5103,
5103A (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.303,
3.307, 3.309(d), 3.311 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. The Evidence
As noted, the claimant served on active duty in the United
States Army from September 1944 to November 1946. He served
with American occupation forces in the VA-defined Hiroshima
area from October 6, 1945, to January 31, 1946.
The claimant's service medical records were obtained by the
RO in December 1949, and did not include his dental records.
The claimant's report of service entrance examination,
conducted in August 1944, disclosed no pertinent
abnormalities, and his genitourinary system was normal. His
service medical records are silent for complaint, treatment,
findings or diagnosis of prostate cancer or other
genitourinary condition while on active duty. His report of
service separation examination, conducted in September 1946,
disclosed no abnormalities of the genitourinary system.
The claimant's Separation Qualification Record shows that the
claimant served as a Medical NCO while on active duty, while
his service separation document show the he received the
Japan Occupation medal. His WD AGO Form 53-55, shows that he
was born in September 1926, and that he served outside the
United States from March 17, 1945, to September 19, 1946.
In April 2001, the claimant filed an application for service
connection for prostate cancer as residual to exposure to
ionizing radiation. He contended that he was exposed to
ionizing radiation while at Kure and Hiroshima, Japan, and
that his last such exposure occurred in July 1946. He
reported treatment for prostate cancer by Dr. S.W.F., a
private urologist, from February to April 1994.
In July 2001, the claimant submitted a Statement in Support
of Claim (21-4138), and a completed Radiation Exposure
Questionnaire (Hiroshima/Nagasaki) in which he contended that
he served as medical NCO while assigned to the Headquarters
Battery, 167th Field Artillery Battalion, at Kure, Japan,
from October 1945 to April 1946; that Kure, Japan, is 20
miles from Hiroshima; that in February1946, he went sight-
seeing at ground zero in Hiroshima, and spent the entire day
there; that he was exposed to atomic radiation from the soil
and air; and that he believes that such exposure has had a
direct effect on his health. He further related that he
served from April to September 1946 with a medical unit in
Osaka, Japan. He denied any other such exposure before or
after service, and denied any family history of leukemia or
cancer, but acknowledged light smoking for 60 years.
Medical records from St. Luke's Medical Center (Dr. S.W.F),
dated from February 1994 to April 2001, show that the
claimant was found to have an elevated prostate specific
antigen (PSA) in February 1994 (68.4); that a pathology
report showed diagnoses of adenocarcinoma of the left and
right side of the prostate, Gleason's Grade 3+3; that his
diagnosis was clinical stage B2, possibly 3, adenocarcinoma
of the prostate; and that he underwent a bilateral obturator
lymph node dissection and radical retropubic prostatectomy in
April 1994, with biopsy findings of adenocarcinoma of the
prostate, and involvement of the right seminal vesicle,
Gleason's Grade 3+4. The April 1994 hospital summary cited
the claimant's history of smoking 1 to 11/4 packs daily for 52
years. In June 1996, a prostate biopsy revealed a well-
differentiated adenocarcinoma. The claimant was seen in
follow-up in April 1998, and was stated to have a failed
radical prostatectomy, with recurrence of carcinoma of the
prostate, local recurrence with failure following radical
prostatectomy. In October 1999, the claimant's cancer was
shown to have spread and was diagnosed as carcinoma of the
prostate, post irradiation therapy status, post radical
prostatectomy status. In April 2001, the claimant was
reported to have had a recurrence of metastatic carcinoma of
the prostate.
An RO letter of August 2001 asked the Defense Threat
Reduction Agency to certify the claimant's participation in a
radiation-risk activity while on active duty, and provided
salient material concerning the claimant's active service and
his reported exposure while stationed at Kure and while
sight-seeing at Hiroshima. Copies of the claimant's
statements and of his service documents were provided to that
agency. It was noted that the claimant was age 20 at the
time of his exposure; that prostate cancer was diagnosed in
February 1994, some 48 years after exposure; and that he
reported no family history of cancer or occupational
exposure.
In its response, received at the RO in September 2001, the
Defense Threat Reduction Agency stated that the claimant was
a member of American occupation forces in Japan following
World War II; that he was initially assigned to the Medical
Detachment, 167th Field Artillery Battalion, and subsequently
to the Headquarters Company, Kure Base; that he was present
in the VA-defined Hiroshima area from October 6, 1945,
through January 31, 1946. It was further stated that a
scientific dose reconstruction titled Radiation Dose
Reconstruction U.S. Occupation Forces in Hiroshima and
Nagasaki, Japan, 1945-1946 (DNA 5512F) has determined the
maximum possible radiation dose that might have been received
by any individual who was at either Hiroshima or Nagasaki for
the full duration of the American Occupation (September 1945
to June 1946 for Nagasaki; and September 1945 to March 1946
for Hiroshima). Using all possible "worst case"
assumptions, the maximum possible dose any individual
serviceman might have received from external radiation,
inhalation, and ingestion is less than one rem. This does
not mean that any individual approached that level of
exposure. In fact, it is probable that the great majority of
servicemen assigned to the Hiroshima or Nagasaki occupation
forces received no radiation exposure whatsoever, and that
the highest dose received by anyone was a few 10's of
millirem.
In October 2001, the RO forwarded the claimant's case and the
supporting documentation to the Chief Benefits Director, VA
Central Office, for review relative to the issue of service
connection for prostate cancer as residual to exposure to
ionizing radiation. In January 2002, the VA's Chief Benefits
Director forwarded the case to the Director, Compensation and
Pension Service, for review and an opinion as to any
relationship between the claimant's disability and exposure
to ionizing radiation in service. The case was then referred
to the VA Undersecretary for Health for review and an opinion
concerning any relationship between exposure to ionizing
radiation and the development of prostate cancer. The Chief
Public Health and Environmental Hazards Officer was asked to
perform the evaluation on behalf of the Under Secretary.
In a January 2002 Memorandum from the Chief Public Health and
Environmental Hazards Officer, written for the VA Under
Secretary for Health, she cited the Defense Threat Reduction
Agency's finding that the claimant was exposed to a dose of
ionizing radiation during military service of less than one
rem; that the Committee on Interagency Radiation Research and
Policy Coordination (CIRRPC) Science Panel Report number 6,
1988, does not provide screening doses for prostate cancer;
that the sensitivity of the prostate to radiation
carcinogenesis appears to be relatively low and not clearly
established (Health Effects of Exposure to Low Levels of
Ionizing Radiation (BEIR V), pages 316-318; Mettler and
Upton, Medical Effects of Ionizing Radiation, 2nd edition,
1995, page 168). In light of the above, the Chief Public
Health and Environmental Hazards Officer expressed the
opinion that it is unlikely that the claimant's prostate
cancer can be attributed to exposure to ionizing radiation in
service. The VA under Secretary for Health concurred in that
opinion, finding that there was no reasonable possibility
that the veteran's prostate cancer was the result of such
exposure.
The details of that development and the findings were
provided the RO in a January 2002 letter from the Director,
Compensation and Pension Service.
A rating decision of January 2002 denied service connection
for prostate cancer. The claimant and his representative
were notified of that decision and of his right to appeal by
RO letter of February 5, 2002, with a copy of that rating
decision.
The claimant submitted his Notice of Disagreement in December
2001, in which he questioned the findings as regards his
exposure to ionizing radiation, asserting that he served four
months in Hiroshima and that no amount of ionizing radiation
is safe. By RO letter of February 19, 2002, he was informed
of his right to elect to have his claim reviewed by the RO's
Decision Review Officer, or to follow the traditional appeals
process. In a letter from the claimant, received in February
2000, he asserted that he had been advised by the American
Cancer Society that ionizing radiation of any size dose could
affect every organ in the body, affecting the DNA of the gene
and causing it to become abnormal and lead to cancer and
defects in human offspring. He enclosed a February 2002 e-
mail from an individual who asserted that scientific evidence
is relatively weak on the connection between radiation
exposure and prostate cancer; that this did not mean that
prostate cancer CANNOT be a result of prostate cancer, but
that the evidence available had not established a connection
between radiation exposure and other diagnoses (emphasis in
original). That e-mail further noted that in 1998, the VA
had amended the regulations, stating that based upon
available evidence, prostate cancer and other cancers may be
induced by ionizing radiation, citing Fed. Reg. 50993-50995
[now codified at 38 C.F.R. § 3.311(b)(2)(xxiii)]. He further
enclosed a copy of an article from The Nuclear Guardianship
Forum, issue 3, Spring 1994, page 8, citing a 1992 speech and
January 1994 interview with Dr. John William Gofman, MD,
professor emeritus of Molecular and Cell Biology at the
University of California at Berkeley, which indicated that a
study of the health effects of radiation by Dr. Gofman and
his partner, conducted from 1963 to 1972 and funded by the
Atomic Energy Commission (now the Nuclear Regulatory Agency)
indicated that there was no threshold level below which doses
of ionizing radiation to the human body were safe, and that
even one track of ionizing radiation passing through the
chromosomes in a cell's nucleus can cause damage, leading to
cancer, leukemia, and genetic defects. That article further
asserted that because he was unwilling to suppress his
findings, the AEC terminated Dr. Gofman's funding and the
project was ended in 1972. That article did not mention or
otherwise address prostate cancer, and the individual writing
that article was shown to have a graduate degree in holistic
psychology. It was noted in that article that Dr. Gofman's
papers were not published in professional journals, and that
his books and papers were published through the Committee for
Nuclear Responsibility.
A Statement of the Case was provided the claimant and his
representative on June 12, 2002. The claimant submitted his
Substantive Appeal (VA Form 9) in June 2002, in which he
related that in 1945-1946, he was at ground zero for 4 months
in a contaminated ionized radiation area; that he believes
that he received radiation from the environment that possibly
affected his chromosomes and genes. In that document, he
requested a hearing before a traveling Member of the Board,
but subsequently withdrew that hearing request.
In an August 2002 letter from the claimant, he disagreed with
the dates of his assignment at Hiroshima, asserting that he
was present at Hiroshima from October 6, 1945, to January 31,
1946; that he believes that his exposure to ionizing
radiation caused his current prostate cancer; and that Dr.
Gofman indicated that even one track of ionizing radiation
passing through the chromosomes in a cell's nucleus can cause
damage, leading to genetic defects.
In a VA Form 646 submitted by the claimant's representative,
he reiterated the claimant's contention that his current
residuals of prostate cancer are a result of his exposure to
ionizing radiation while he was with the occupying forces in
Japan (Hiroshima) from October 6, 1945, to January 31, 1946;
that the claimant's duties included being placed at the
ground zero site in Hiroshima and duties while stationed at
Kure Base, Japan. He further called attention to the
claimant's diagnosis of prostate cancer in 1994, that he
subsequently underwent a radical retropubic prostatectomy in
1994; and that in 1996, he was shown to have a recurrence.
He also called attention to the fact that the Committee on
Interagency Radiation Research and Policy Coordination
(CIRRPC) Science Panel Report number 6, 1988, does not
provide screening doses for prostate cancer, and that
38 C.F.R. § 311(b)(2)(xxiii) states that prostate cancer is a
radiogenic disease. In addition, the claimant's
representative asserted that the claimant was denied the
chance to prove direct service connection under 38 U.S.C.A.
§ 1100 and 38 C.F.R. § 3.309(d), or actual causation, citing
Combee v. West, 34 F.3d 1039 (Fed. Cir. 1994).
II.. Analysis
The appellant asserts that his prostate cancer resulted from
his exposure to ionizing radiation when he was stationed in
and around Hiroshima from September 1945 to July 1946.
If a veteran was exposed to radiation during active military,
naval, or air service, the following diseases shall be
service-connected even though there is no record of such
disease during service, provided further that the rebuttable
presumption provisions of 38 C.F.R. § 3.307 are also
satisfied: Leukemia (other than chronic lymphocytic
leukemia), cancers of the thyroid, breast, pharynx,
esophagus, stomach, small intestine, pancreas, bile ducts,
gall bladder, salivary gland, and urinary tract (Note:
"urinary tract means the kidneys, renal pelves, ureters,
urinary bladder, and urethra"), multiple myeloma, lymphomas
(except Hodgkin's disease), primary liver cancer (except if
cirrhosis or hepatitis B is indicated), cancer of the
salivary gland, bronchiolo-alveolar carcinoma, cancer of the
bone, cancer of the brain, cancer of the colon, cancer of the
lung, and cancer of the ovary. 38 C.F.R. § 3.309(d)(2)
(2002).
Evidence which may be considered in rebuttal of service
incurrence of a disease listed in § 3.309 will be any
evidence of a nature usually accepted as competent to
indicate the time of existence or inception of disease, and
medical judgment will be exercised in making determinations
relative to the effect of intercurrent injury or disease.
The expression "affirmative evidence to the contrary" will
not be taken to require a conclusive showing, but such
showing as would, in sound medical reasoning and in the
consideration of all evidence of record, support a conclusion
that the disease was not incurred in service. 38 C.F.R. §
3.307(d) (2002).
The term "radiation-exposed" veteran means either a veteran
who while serving on active duty, or an individual who while
a member of a reserve component of the Armed Forces during a
period of active duty for training or inactive duty training,
participated in a radiation-risk activity. 38 C.F.R. §
3.309(d)(3)(i). The term "radiation-risk activity"
includes the following: onsite participation in a test
involving the atmospheric detonation of a nuclear device; the
occupation of Hiroshima or Nagasaki, Japan, by United States
forces during the period beginning on August 6, 1945, and
ending on July 1, 1946; and internment as a prisoner of war
in Japan (or service on active duty in Japan immediately
following such internment) during World War II which resulted
in an opportunity for exposure to ionizing radiation
comparable to that of the United States occupation forces in
Hiroshima or Nagasaki, Japan, during the period beginning on
August 6, 1945, and ending on July 1, 1946. 38 C.F.R. §
3.309(d)(3)(ii) (2002).
For purposes of 38 C.F.R. § 3.311(b), a "radiogenic
disease" means a disease that may be induced by ionizing
radiation and shall include the following: all forms of
leukemia except chronic lymphatic (lymphocytic) leukemia,
cancers of the thyroid, breast, lung, bone, liver, skin,
esophagus, stomach, colon, pancreas, kidney, urinary bladder,
salivary gland, and ovaries, multiple myeloma, posterior
subcapsular cataracts, non-malignant thyroid nodular disease,
parathyroid adenoma, tumors of the brain and central nervous
system, cancer of the rectum, lymphomas (except Hodgkin's
disease), prostate cancer, and any other cancer. 38 C.F.R. §
3.311(b)(2)(i) (2002). Furthermore, VA has determined that
polycythemia vera is not a "radiogenic disease" and such
has been specifically excluded from the aforementioned list.
38 C.F.R. § 3.311(b)(3) (2002).
The diseases listed at 38 C.F.R. § 3.311(b)(2) shall have
become manifest 5 years or more after exposure, except that
bone cancer must become manifest within 30 years after
exposure, leukemia may become manifest at any time after
exposure, posterior subcapsular cataracts must become
manifest 6 months or more after exposure, and other disease
specified in paragraph §3.311(b)(2) must have become manifest
5 years or more after exposure. 38 C.F.R. § 3.311(b)(5)
(2002).
When it is determined that: (1) a veteran was exposed to
ionizing radiation as a result of participation in the
atmospheric testing of nuclear weapons, the occupation of
Hiroshima or Nagasaki, Japan, from September 1945 until July
1946, or other activities as claimed, and (2) the veteran
subsequently developed a radiogenic disease, and (3) such
disease first became manifest within the period specified in
38 C.F.R. § 3.311(b)(5), then the claim will be referred to
the Under Secretary for Benefits for further consideration.
If any of the foregoing three requirements has not been met,
it shall not be determined that a disease has resulted from
exposure to ionizing radiation under such circumstances. 38
C.F.R. § 3.311(b)(1). The record shows that all of the cited
requirements have been met.
If a radiation claim is based on a disease other than one of
those listed in 38 C.F.R. § 3.311(b), VA shall nevertheless
consider the claim under the foregoing provisions provided
that the claimant has cited or submitted competent scientific
or medical evidence that the claimed condition is a
radiogenic disease. 38 C.F.R. § 3.311(b)(4); See Combee v.
Brown, 34 F.3d 1039 (Fed. Cir. 1994). While the claimant's
representative has asserted that the claimant was denied the
chance to prove direct service connection under 38 U.S.C.A.
§ 1100 and 38 C.F.R. § 3.309(d), or actual causation, citing
Combee v. West, 34 F.3d 1039 (Fed. Cir. 1994), the Board
notes that prostate cancer is not a disease other than those
specified at 38 C.F.R. § 3.311(b), and is identified in VA
regulations as a radiogenic disease. 38 C.F.R. §
3.311(b)(2)(i-xxiii) (2002).
The claimant has submitted a February 2002 e-mail from an
individual who acknowledged that scientific evidence is
relatively weak on the connection between radiation exposure
and prostate cancer; that this did not mean that prostate
cancer CANNOT be a result of prostate cancer, but that the
evidence available had not established a connection between
radiation exposure and other diagnoses (emphasis in
original). That e-mail further noted that in 1998, the VA
had amended the regulations, stating that based upon
available evidence, prostate cancer and other cancers may be
induced by ionizing radiation, citing Fed. Reg. 50993-50995
[now codified at 38 C.F.R. § 3.311(b)(2)(xxiii)]. The
claimant further enclosed a copy of an article citing a 1992
speech and January 1994 interview with Dr. John William
Gofman, MD, which indicated that a study of the health
effects of radiation by Dr. Gofman and his partner, conducted
from 1963 to 1972 and funded by the Atomic Energy Commission
concluded that there was no threshold level below which doses
of ionizing radiation to the human body were safe, and that
even one track of ionizing radiation passing through the
chromosomes in a cell's nucleus can cause damage, leading to
cancer, leukemia, and genetic defects. The Board notes that
the cited article did not mention or otherwise address
prostate cancer; that Dr. Gofman's papers were not published
in professional journals, and thus were not subject to peer
review; that his books and papers were published through the
Committee for Nuclear Responsibility; and that the individual
writing that article was shown to have a graduate degree in
holistic psychology. The Board is not persuaded that such
evidence is persuasive with respect to the instant appeal.
A claimant may establish service connection for a disability
claimed to be secondary to radiation exposure in service in
three ways. See Hardin v. West, 11 Vet. App. 74 (1998). One
way is under the presumptive provisions of 38 C.F.R. §
3.309(d), which does not require a dose estimate. Rather, it
requires only that the claimant be a radiation-exposed
veteran who has developed one of the listed conditions at any
time post-exposure, and that the rebuttable presumption
provisions of 38 C.F.R. § 3.307 be satisfied. Sufficient
evidence must be presented of both the listed disease and the
requisite participation in a radiation-risk activity. 38
C.F.R. § 3.309 (2002).
A second way for a claimant to establish service connection
for a radiogenic disease is under the provisions of 38 C.F.R.
§ 3.311, which requires a dose estimate, but provides that
presence at a site will be presumed for participants claiming
participation in atmospheric weapons tests. Diseases
considered radiogenic under this regulation includes diseases
not listed under 38 C.F.R. § 3.309(d) (2002).
The third way in which service connection for radiogenic
disease may be established is by showing direct service
connection. The United States Court of Appeals for the
Federal Circuit (Federal Circuit) determined that the
Veterans' Dioxin and Radiation Exposure Compensation
Standards (Radiation Compensation) Act, Pub. L. No. 98-542, §
5, 98 Stat. 2725, 2727-29 (1984) does not preclude
establishment of service connection with proof of actual
direct causation. Combee, id.
The key to resolving this case is whether the veteran can
satisfy the criteria for a radiation-exposed veteran by
participation in a radiation-risk activity. The record
establishes that the claimant participated in a radiation
risk activity, i.e., the occupation of Hiroshima during the
period beginning on August 6, 1945, and ending on July 1,
1946. In addition, it is established that the claimant may
have undergone some exposure to ionizing radiation while
participating in the occupation of Hiroshima during that
period. Further, the claimant has an established diagnosis
of prostate cancer, proven by biopsy, and supported by the
diagnosis of his urologist. 38 C.F.R. § 3.311(b)(2)(i-xxiii)
(2002) provides a list of "radiogenic diseases" for
purposes of development and referral for consideration by the
Undersecretary for Benefits. The occupation of Hiroshima
during the period beginning on August 6, 1945, and ending on
July 1, 1946, is one of the criteria for "a radiation-risk
activity" under the provisions of 38 C.F.R. § 3.311(b)(1)
(2002). Prostate cancer is one of the radiogenic diseases
identified in 38 C.F.R. § 3.311(b)(2)(i-xxiii) (2002). That
disease was clinically established and diagnosed more than 5
years after final service separation.
The veteran's claim has been developed under the provisions
of 38 C.F.R. § 3.311 and referred to the Undersecretary for
Benefits. However, on referralb ased on an assessment of the
veteran's radiation exposure it has been determined that "it
is unlikely that the veteran's prostate cancer can be
attributed to exposure to exposure to ionizing radiation in
service." Furthermore, as the overall record does not
include evidence demonstrating that the veteran's prostate
cancer is the result of radiation exposure in service, the
clear preponderance of the evidence is against the claim.
For these reasons, the claim must be denied.
In reaching its decision, the Board has considered the
doctrine of reasonable doubt, however, as the evidence is not
in equipoise, or evenly balanced, but favors the claimant,
the doctrine is not for application. Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
ORDER
Service connection for residuals of prostate cancer is
denied.
____________________________________________
G. H. Shufelt
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.